Karnataka High Court
Abdul Rehaman vs H.N. Rasheed on 25 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 750 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.750 OF 2023 (PAR)
BETWEEN:
1. ABDUL REHAMAN,
S/O NYAMATHI MOHAMMED IMAMSAB,
AGED ABOUT 47 YEARS,
R/O HARANAHALLI VILLAGE,
SHIVAMOGGA TQ AND DISTRICT-577201.
2. SMT. ATIYA JAN,
W/O ABDUL WAZEED,
AGED ABOUT 65 YEARS,
R/O AYANUR KOTE,
SHIVAMOGGA TQ AND DISTRICT-577201.
3. SMT. KHYRUNNISA,
W/O MOHAMMED HUSSAIN,
Digitally signed AGED ABOUT 45 YEARS,
by DEVIKA M
R/O KHABARSTAHAN, SAVAIPALYA,
Location: HIGH SHIVAMOGGA CITY-577201.
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI. HALLI SHANTAPPA BASAPPA, ADVOCATE)
AND:
1. H.N. RASHED,
S/O NYAMATHI MOHAMMED IMAMSAB,
AGED ABOUT 70 YEARS,
R/O 2ND CROSS, TANK MOHALLA,
SHIVAMOGGA CITY-577201.
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2. N. ABDUL NAZEER,
S/O NYAMATHI MOHAMMED IMAMSAB,
AGED ABOUT 57 YEARS,
R/O OPP: TANOJI MAIN ROAD,
HARANAHALLI VILLAGE,
SHIVAMOGGA TQ & DISTRICT-577201.
3. MOHAMMED ANWAR SAB,
S/O MOHAMMED KAYOOM SAB @ CHOTU SAB,
AGE: MAJOR,
R/O 5TH CROSS, RIGHT SIDE,
ANNANAGARA,
SHIVAMOGGA-CITY-577201.
4. NASIMUNNISA,
W/O MUHIBULLA,
AGE: MAJOR,
R/O OPP. FAROOKIYA SHADI MAHAL,
100 FT. ROAD, ILIYAS NAGARA,
SHIVAMOGGA-577201.
5. MUKTHIYAR AHMED,
S/O MOHAMMED ANWAR,
AGE: MAJOR,
R/O NEAR RAHMANIAY TRADERS,
NETAJI CIRCLE,
SHIVAMOGGA CITY-577201.
6. SURIYA BANU,
W/O NAZARULLA,
AGE: MAJOR,
R/O 4TH CORSS, KOTE ROAD,
NACHINAHALLI PALYA,
MYSURU-570001.
7. MOHAMMED IMTHIYAZ,
S/O MOHAMMED ANWAR,
AGE: MAJOR,
R/O 3RD CROSS, TANK MOHALLA,
SHIVAMOGGA-CITY-577201.
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RSA No. 750 of 2023
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8. AJAZ AHAMMED,
S/O MOHAMMED ANWAR,
AGE: MAJOR,
R/O 2ND CROSS, JPN NAGAR,
SHIVAMOGGA CITY-577201.
9. MOHAMMED FAYAZ,
S/O MOHAMMED ANWAR,
AGE: MAJOR,
R/O OPP. FAROOKIYA SHADI MAHAL,
100 FT. ROAD, ILIYAS NAGARA,
SHIVAMOGGA-577201.
10. FAZIYA BANU,
W/O BABU SAB,
AGE: MAJOR,
R/O 5TH CROSS, RIGHT SIDE,
ANNANAGARA,
SHIVAMOGGA-CITY-577201.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 13.07.2022
PASSED IN R.A.NO.66/18 ON THE FILE OF THE I ADDITIONAL
DISTRICT JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
03.08.2018 PASSED IN O.S.NO.84/2013 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 750 of 2023
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellants.
2. This second appeal is filed against the concurrent
finding.
3. The factual matrix of the case of the plaintiffs
before the Trial Court is that the suit schedule property was
purchased by the father of the plaintiffs and the defendants
through a registered sale deed dated 05.05.1942 from one
Smt. Janabi, W/o Imam Sahib. After the death of the father,
his first son born to his wife by name Mohamed Sulthan Sab,
had executed a registered relinquishment deed on 08.12.1975
in favour of the plaintiffs and defendant No.1. It is their case
that they themselves and the defendants are in joint possession
of the suit schedule property. The defendant No.1 took the
specific defence that he had invested Rs.4,00,000/- to
Rs.5,00,000/- for improvement of the suit schedule property
and his father Mohamed Imam Sab had made an oral gift in his
favour in respect of the schedule property and delivered the
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possession of the suit schedule property to him in the presence
of the witnesses.
4. The Trial Court considering the pleadings of the
parties, framed the issues and allowed the parties to lead
evidence. The plaintiff Nos.1 and 2 got examined themselves as
P.W.1 and P.W.2 and produced the documents at Exs.P.1 to 11.
P.W.2 also produced the documents at Exs.P.12 to 28. On the
other hand, defendant No.1 has got examined himself as D.W.1
and has produced the documents at Exs.D.1 to 11. The Trial
Court having considered both oral and documentary evidence
placed on record, comes to the conclusion that the property
belongs to the father and though it is contended by defendant
No.1 that there was a oral hiba in his favour, the same is not
accepted in coming to the conclusion that oral hiba is not
proved by placing any cogent evidence before the Court. Even
though defendant No.1 claims that he is in adverse possession,
the Trial Court comes to the conclusion that the said defence is
not applicable to defendant No.1 and defendant No.1 has
utterly failed to prove the ingredients of the oral gift and failed
to prove that his father has orally gifted the suit schedule
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property in his favour in the presence of the witnesses and
there is nothing on record to believe that defendant No.1 has
spent a huge sum of money for improvement of the suit
property. The Trial Court also taken note of that defendant
No.2 died during the stage of trial and her legal heirs were
brought on record and they filed a memo before the Court,
wherein they have clearly stated that they are not interested in
the case and in getting any share in the suit schedule property.
Having taken note of the said material, the Trial Court comes to
the conclusion that the plaintiffs and defendant No.1 are in joint
possession of the suit schedule property as on the date of suit
without there being any partition between them and the
plaintiffs are entitled for 4/6th share in the suit schedule
property.
5. Being aggrieved by the said judgment and decree of
the Trial Court, an appeal is filed and the First Appellate Court
having considered the grounds urged in the appeal memo,
formulated the points whether the plaintiffs and defendant No.1
have succeeded to the suit schedule property owned by their
father, whether the plaintiffs have further established that their
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step brother named Mohammad Sultan Sab has relinquished his
right over the suit schedule property by executing a registered
relinquishment deed dated 08.12.1975 in favour of the
plaintiffs and defendant No.1, whether defendant No.1 has
proved that his father Nyamthi Mohammed Imam Sab had
bequeathed the suit schedule property in his favour under an
oral gift (Hiba) and had delivered the possession of the suit
schedule property to him in the presence of the witnesses and
whether defendant No.1 has proved the alleged ouster of the
plaintiffs from the suit schedule property. The First Appellate
Court having re-assessed the material available on record,
answered point Nos.1 and 2 in the affirmative and did not
accept the contention of defendant No.1 with regard to hiba as
well as ouster of the plaintiffs from the joint possession of the
suit schedule property and comes to the conclusion that the
Trial Court has not committed any error.
6. Being aggrieved by the concurrent finding, the
present second appeal is filed before this Court.
7. The main contention of the learned counsel for the
appellants before this Court is that both the Courts have
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committed an error in coming to the conclusion that the
plaintiffs are in joint possession of the suit schedule property.
The learned counsel would vehemently contend that the
plaintiffs were not residing in the place of the property, but
they were staying in Shivamogga and both the Courts failed to
consider the adverse possession and law of limitation and
committed an error in not accepting the contention of
defendant No.1 with regard to the oral gift is concerned. Hence,
this Court has to admit the appeal and frame substantial
question of law.
8. Having heard the learned counsel for the appellants
and also on perusal of the material available on record,
particularly the pleadings of the plaintiffs and also the defence
of defendant No.1, it is not in dispute that the property belongs
to the father of the plaintiffs and the defendants. The only
claim made by defendant No.1 is that there was a hiba i.e., oral
gift in his favour. But in order to prove the oral gift, the same
is not substantiated by placing any cogent evidence. The Trial
Court in detail discussed the same in paragraph No.31 that
parting of possession is not necessary when father makes gift
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of the dwelling house to his sons and donor and the donees are
residing therein and comes to the conclusion that defendant
No.1 has utterly failed to prove the ingredients of the oral gift
and failed to prove that his father has orally gifted the suit
schedule property in his favour and so also comes to the
conclusion that though it is specifically contended that oral gift
was made, but in order to substantiate the same, except
examining defendant No.1, not examined any of the witnesses.
9. The First Appellate Court having re-assessed both
oral and documentary evidence available on record, comes to
the conclusion that there is no dispute with regard to the
property belongs to the father and in order to prove the factum
of execution of oral gift (hiba) in favour of defendant No.1, he
has not produced any cogent evidence before the Court. When
defendant Nos.2 to 4 being the daughters of late Nyamathi
Mohammed Imam Sab have filed a memo stating that they do
not claim any share over the suit schedule property and that
they have no interest to defend the case, there is no illegality in
merging the said shares of all the daughters and re-distributing
their shares among the plaintiffs and defendant No.1. The
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defendant Nos.2 to 4 have not relinquished their shares
through any registered document exclusively in favour of
defendant No.1, but they have abandoned their claim over the
suit schedule property, as such the Trial Court has rightly
granted the relief of partition to the plaintiffs to the tune of
4/6th share over the same. The First Appellate Court also
comes to the conclusion that when there was no any document
of partition, the Trial Court has not committed any error. When
such being the case, when the oral gift deed was pleaded and
the same is not substantiated and merely because others have
not disputed the claim of defendant No.1, the same cannot be a
ground to come to a other conclusion. The Trial Court as well as
the First Appellate Court have taken note of the fact that the
property originally belongs to the father and though defendant
No.1 pleaded about execution of the hiba in his favour, the
same is not substantiated by placing any cogent evidence.
When such being the case, I do not find any ground to admit
the appeal and frame any substantial question of law. Both the
factual aspects as well as question of law is considered by both
the Courts with regard to the claim made by the plaintiffs as
well as the claim made by defendant No.1 with regard to oral
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gift is concerned and when the same is not substantiated, the
question of admitting the second appeal does not arise, since
there is no any perversity in the finding of the Trial Court as
well as the First Appellate Court and hence, not a case to
invoke Section 100 of CPC.
10. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
